Never Too Late: If You Missed the IPKat

Rainy autumn nights are perfect for catching up on IPKat over a cup of tea (and ideally with a kat in your lap). Amirite?

Mittens is all caught up with IPKat
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Patents

Your input is needed! The recent hearing at the Intellectual Property subcommittee to the U.S. Senate Committee on the Judiciary on patent quality got GuestKat Léon Dijkman thinking about the quality of patents in Europe. The EPO has reported a very high satisfaction rate, but there's data suggesting a less rosy picture. Tell us what you think in the comments. 

GuestKat Rose Hughes explored a burning question: Can the UK become and stay a member of the Unitary Patent Court after Brexit? The cautious conclusion of a recent paper by the UPC is that “it seems not per se legally impossible that the UK can stay within the UPCA [UPC agreement], even when not an EU Member State”. 

Pink Cripps is a sweet, crunchy variety of apple developed by crossing the Lady Williams and the Golden Delicious. You might have seen them in shops under their trade name "Pink Lady".  Dr Titilayo Adebola wrote about the legal saga concerning the novelty of these apples and Articles 10, 20 and 116 of the Basic Regulation.

Since the release of the UK Supreme Court's decision in Unilever v Shanks [2019] UKSC 45 (IPKat post here) the mainstream and social media have been awash with hyperbole as to the potential impact of the decision on large employers. However, GuestKat Rose Hughes thought the UK Supreme Court's (UKSC) decision was not a substantive change in the law, and delves a bit deeper into Lord Kitchin's reasoning. 

Readers tired of the uncertainty and ambiguity in the UK politics drama might take comfort in
Neo v Anan Kasei, a UK Court of Appeals case that further clarifies the thorny issue of insufficiency. Guestkat Rose Hughes walked us through the court's reasoning in relation to the Biogen and Kirin-Amgen cases.

GuestKat Rose Hughes responded to an anonymous Katfriend tipper and reported on an interesting update in the progress of the CRISPR/Broad Institute appeal (T0844/18). As previously reported on IPKat, oral proceedings are scheduled for 13-17 January 2020. It seems that the 4.5 day hearing will be almost entirely devoted to consideration of whether the EPO’s long-standing approach to priority, particularly the “same applicant test”, should be altered.

GuestKat Peter Ling reviewed "Global Genes, Local Concerns", a book that covers many of the various legal, as well as some non-legal questions, posed by biobanks. Most contributions are based on (positive and negative) experiences with existing biobanks, which makes this book a valuable tool not only for researchers and policymakers, but also to legal practitioners.

Copyright

Internkat He Kan wrote about Feilin v. Baidu, a Beijing Internet Court decision that ruled copyright only vests in human authors, not AIs. 

Ask and you shall receive. Recently, the IPKat received an intriguing couple of questions from a reader who is currently studying IP law: does someone renting out their spare bedroom on Airbnb around 50% of the time have to acquire a separate licence for the TV set which they have in said room? What if they also have a radio set that allows guests to play music in said environment? Permakat Eleonora Rosati gave a thorough response with many case citations. 

Permakat Eleonora Rosati wrote about Warner Music and Another v TuneIn Inc, an important High Court of England and Wales "test case" about infringement of copyright in sound recordings under section 20 of the Copyright, Designs and Patents Act 1988. It concerns the right of communication to the public over the internet.

While drafting and negotiating technology agreements, GuestKat Ieva Giedrimaite increasingly came across an inconsistent interpretation of General Data Protection Regulation as it pertains to the determination of data processing roles when personal data is limited to login credentials. It is not yet clear who acts and on what basis as a data controller and who assumes a processor role within such engagement.

Sublicensing has become increasingly prevalent against the backdrop featuring a diverse IPR spectrum that subsists in a licensed work, a variety of business models and use cases (internal use, production/testing environment, (non)commercial use, etc.), complex organisational structures of the involved entities, multiple proprietary interests, geographical scope and so on. GuestKat Ieva Giedrimaite shed light on this complex regime.

Earlier this Fall, the Swedish Patents and Market Court of Appeal asked the Court of Justice of the European Union (CJEU) to clarify the concept of “public” within the meaning of Article 3 and 4 of InfoSoc Directive. Nedim Malovic took us through the facts and arguments of this referral, which now has a case number and an official translation.

Trade Marks

The IPKat has been informed about the launch of a new book, “The Confusion Test in European Trade Mark Law”, by Dr. Ilanah Fhima and Professor Dev Gangjee and published by Oxford University Press. This book is first comprehensive and systematic account of the confusion test within the harmonised European trade mark system. It considers how the test is applied by national trade mark registries across EU member states, by the EUIPO, by national courts, and by the CJEU. It offers practical guidance, while also evaluating the viability of more recent developments such as initial-interest confusion, post-sale confusion and consumer responses to uses of trade marks on the internet.”

A launch event will take place on 14 November 2019, 18:30 - 19:30 at UCL Faculty of Laws. 

Registering a trade mark in a three-dimensional shape is usually a bumpy, uphill ride. No one was surprised when the UK Intellectual Property Office (UKIPO) rejected Jaguar Land Rover's application for the registration of 6 three-dimensional shapes of their cars last month. InternKat Riana Harvey gave us the details.

As a consequence of a voluntary assignment of Schweppes Cadbury’s trade marks to the Coca Cola Group in 1998, the ownership of the ‘Schweppes’ brand belongs to two fiercely competing business groups: The Schweppes Group holds the exclusive rights over the ‘Schweppes’ brand in Spain, among other countries, while the Coca-Cola Group holds the rights over the ‘Schweppes’ brand in the United Kingdom, among other countries. Kat Friend Raúl Bercovitz reported on the fascinating legal proceedings this unusual trademark situation triggered in Spain.

As a key point of the Chinese government’s initiative to curb the proliferation of bad faith trade mark applications, Several Provisions for Regulating Application for Trade Mark Registration will go into effect as of 1 December 2019.  The provisions are intended to strengthen the principle of good faith, enumerate factors to consider to detect bad faith applications, and outline guidance for punitive measures. Asia Correspondent Tian Lv discussed the new legislation, as well as the plight of a celebrity vlogger battling trade mark squatters.

A court in Belgium recently rule on a case about the usage of trade marks in artworks. The art works at issue often feature naked or scantily-dressed women holding Dom Pérignon champagne bottles and, in some instances, mere outlines of such bottles and their iconic label. GuestKat Léon Dijkman wrote about the story of an artists who creates works that feature naked or scantily-dressed women holding Dom Pérignon champagne bottles and, in some instances, mere outlines of such bottles and their iconic label.

Although Regulation (2100/94/EC) on Plant Variety Rights (“PVR Regulation”) is one of the oldest pieces of EU IP law still in force, it has not been often explored by the Court of Justice. Perhaps this is why a case of fundamental nature is currently before the Court. GuestKat Peter Ling told the story.

GuestKat Antonella Gentile reviewed Internet Intermediaries and Trade Mark Rights by Althaf Marsoof. The interplay between internet intermediaries and trade marks has so far received meager attention, and this book aims to fills this gap in scholarly literature.

Conference Report & Announcements 

Kat friend Rachel Platts provided IPKat readers with a summary of all sessions of the recent conference Artificial Intelligence: Challenges for Intellectual Property Law, held on17 and 18 October 2019, hosted by the Academy of European Law (ERA) in Brussels. The conference focused on how Artificial Intelligence is, or will impact, on various aspects of IP law.

Less than three months ago, Professor Shamnad Basheer from India sadly passed away at the age of 43. Shortly after his death, the Association for Accessible Medicines, in collaboration with the Texas A&M University School of Law, established the Shamnad Basheer IP/Trade Fellowship and invited interested scholars to submit applications. Michael Palmedo has been announced as the recipient of the fellowship has been announced. Permakat Neil Wilkof had more details. 

Katfriend Joan Ng brought us the following report on a recent symposium on globalization and FRAND that took place at Oxford. The symposium covered data on standard essential patent (SEP) litigation, the growing influence of non-practicing entities (NPEs) in litigation around the world, and an in-depth legal debate on global FRAND licensing.

Katfriend Gemma Louise Nimmo reported from the second event of Fashion Law London, a well-attended "Autumn-Winter Review" of the latest issues in fashion law. Our Permaket Eleonora Rosati was one of the speakers.